Antenuptial contracts – by Jennifer Stoler

This is a continuation from the article I drafted in October 2017……

So, as most of you (hopefully) have decided, is that you should indeed sign an ANC before getting married.

There is a lot of financial stress that comes along with marriage . Most couples place enormous emphasis on the venue, the flowers, the dress, but what should be seriously considered, is your ANC. I have taken this opportunity to provide couples with an assortment of facts and tips on an ANC in general. Every couple should take these into consideration.

As my speciality is divorce law, I find that the drafting of ANC’s are particularly crucial. It gives me the opportunity to predict what can possibly go wrong in the future, if this has not been attended to in the proper manner.

I have written this article providing couples with a few tips on what they should know about ANC’S and the way in which they are regulated.

Firstly, an ANC should be signed BEFORE you are married. It must be signed in the presence of a Notary and the ANC must be registered within three (3) months of signing. Ideally, the recommendation would be for the parties to make an appointment with an attorney at the attorney’s practice, a minimum of one (1) month before the marriage in order to ascertain the most efficient and complete manner in which to draft the ANC.

Although it is an attorney’s duty to ensure that your ANC is registered within three (3) months from signing, it is advisable that you follow up on this so as to ensure that you will not have lodge the ANC as a late registration application.

If the ANC is not signed before the marriage, you will automatically be deemed to be married IN COMMUNITY OF PROPERTY. This means that you will share an estate comprising of your assets AND liabilities. This system is somewhat outdated.

You should consult with an attorney and notary who will explain all the options available to you, ie getting married with and without accrual. You must ensure that both of you FULLY understand all the clauses in the contract. In recent case law, it was ordered that there was no meeting of minds between the parties as the wife did not understand the concept of “accrual”. Therefore, the court ordered that the ANC was invalid and that they were married in community of property.

It is strongly advised that couples exclude everything that they own before going into the marriage. This will provide certainty of fairness and completeness. When drafting these contracts, many of my clients have indicated to me that they feel that they are placing a “bad omen” on their marriage. My response to this comment is “Alright, then cancel your medical aid as you are placing a bad omen on your health”. This is not the case, this system was created in order to create FAIRNESS and both parties should evaluate it at length and have a common understanding of why certain things should be excluded.

Couples need to be aware that their accrual claim is only claimable upon death or divorce. You cannot claim your portion of the accrual when you are still married. It should also be noted that such accrual claim in a deceased estate is protected from creditors (unless stated otherwise in the ANC). It will also be deemed to be preferential when paying out of the estate.

Your ANC is not set in stone. If the parties down the line elect to exclude further assets or change their marital regime, it is acceptable to amend this. Should you wish to make amendments to your ANC you will need to contact a suitable attorney who will then submit the application on their behalf. The regime can either stay the same, more assets can be excluded, or alternatively change to no accrual, or in community of property.

You may not insert clauses in an ANC which are deemed to be against public policy. Clauses such as “ if one party commits adultery, then that party are not entitled to anything”, or as was the case in the matter of W v H 0217 (1) SA 196 (WCC) – this matter concerned the legality of a clause in an ANC in terms of where the relevant parties agreed that the wife would waive any present or future right to claim maintenance for herself should the marriage be dissolved in any manner or for whatever reason whatsoever. This clause was deemed to be against public policy and offended the constitutional core values which public policy is based upon. Therefore, this clause was invalid and could not be enforced.

Once you have signed your ANC – FORGET ABOUT IT. Do NOT obsess over it. Enjoy your marriage. Hopefully you will never need to use it!

Remember – always ask questions, no matter how silly you may think they are. Your questions may even challenge the attorney to research and find alternative options.

Be aware that the ANC is a guideline. Should the parties elect to divorce, always remember that the ANC can be placed on the back seat and the parties can reach an amicable settlement suitable to both parties.

To this end, people are of the view that an ANC is very simple in nature, however this is not the case, they can be extremely complicated and have far fetching consequences in the future. Always take the above tips into consideration before consulting with an attorney.